GOPAL DASS Vs. NATHULAL BARAYA

JUDGEMENT

(1.) Learned single Judge, by order, dated Sept. 24, 1979, has referred this case to a larger Bench. The point on which the case has been referred is whether Section 5 of the Limitation Act applies to Proceedings under Section 13-A of the Rajasthan premises (Control of Rent and Eviction) Act, 1956 (hereinafter referred to as "the Act"). While referring the above point learned single Judge has sent the entire case for decision by the larger Bench.

(2.) Before dealing with the legal question raised in this reference, we would mention the facts of the case. The plaintiff-petitioners filed a suit for eviction against the defendant-non-petitioner on the ground of default in the payment of rent from Nov. 12. 1963 to Oct 20, 1964. The defendant deposited rent under Section 13-A of the Act No. 12 of 1965 and as such the said suit was dismissed. According to the plaintiffs the defendant again made defaults in the payment of rent from Nov. 4, 1970 to April 3, 1973 amounting to rupees 367.00. as such the present suit for eviction was again filed on the ground of default. On May 29, 1973 the defendant moved an application under Sections 13 (4) & (5) of the Act and prayed for determination of rent due and for depositing the same. The trial Court on the same day passed an order that Section 13 (51 of the Act was not applicable and under Section 13 (4) of the Act there was no provision for determining the rent and as such the defendant was directed to deposit the rent according to law and time was given to deposit the rent up to July 15, 1973. The Legislature introduced Section 13-A by Rajas-than Premises (Control of Rent and Eviction) (Amendment) Ordinance 1975 on Sept. 29, 1975 replaced by Rajasthan Premises (Control of Rent and Eviction) Amendment Act. 1975 dated Feb. 13, 1976. Under Section 13-A (b) it was provided that in every such proceeding the Court shall, on the application of the tenant made within thirty days from the date of commencement of the amending ordinance notwithstanding any order to the contrary, determine the amount of rent in arrears up to the date of the order as also the amount of interest thereon at 6% per annum and costs of the suit allowable to the landlord, and direct the tenant to pay the amount so determined within such time, not exceeding ninety days, as may be fixed by the Court; and on such payment being made within the time fixed as aforesaid, the proceeding shall be disposed of as if tenant had not committed any default. The defendant filed an application under the above provision on April 19, 1976 but the same was dismissed by the Court on July 21. 1977 holding that the application, dated May 29. 1973 filed by the defendant had been disposed of and there was no application pending before the Court. The Court also held that because the application under Section 13-A was not filed within 30 days after coming into force of the amending ordinance on Sept. 29, 1975. the application was not maintainable. The defendant again filed an application under Section 13-A of the Act on July 21, 1977 stating that the defendant had moved an application on May 29, 1973 for depositing the rent and he had deposited the rent accordingly and he was under the impression that on account of the existing law, the Court was not competent to dismiss the suit and the suit was still proceeding. The defendant also moved an application under Section 5 of the Limitation Act for extension of time and condoning the delay. The trial Court dismissed the application by its order, dated Jan, 19, 1978 on the ground that Section 5 of the Limitation Act was not applicable and the defendant had not moved any application under S- 13-A of the Act within thirty days after coming into force of the amending Ordinance. The defendant went m appeal and the learned Additional District Judge, by his order, dated Aug. 6. 1979. allowed the appeal and granted the benefit of Section 5 f the Limitation Act to the defendant. The plaintiffs aggrieved against the order of the Additional District Judge, dated Aug. 6. 1979, filed the present revision. It was contended by Mr Tikku, learned counsel for the plaintiffs that the Additional District Judge had no jurisdiction to extend the benefit of Section 5 of the Limitation Act to the defendant, it was also contended that the reasons .given by the defendant for sufficient cause f*r condoning the delay are contrary to the facts given in his previous application and as such learned Additional District Judge committed material irregularity in the exercise of its jurisdiction in taking the view that there were sufficient reasons for condoning the delay.

(3.) As regards the applicability of Section 5 of the Limitation Act, we are clearly of the opinion that the same is applicable in view of the provisions of Section 29 (2) of the Limitation Act, 1963. Section 29 (2) f the Limitation Act reads as under: "Section 29 (2):-- Where any special or local law prescribes for any suit. appeal or application a period of Limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit.' appeal or application by any special or local law. the provisions contained in Ss. 4 to 24 (inclusive) shall apply only in so far as. and to the extent to which, they are not expressly excluded by such special or local law." The above provision clearly lays down that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Ss. 4 to 24 (inclusive! shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. The Rajasthan Premises (Control of Rent and Eviction) Act, 1950 is a special law and it has not expressly excluded the provisions of the Limitation Act. As Section 5 of the Limitation Act. has not been expressly excluded under the provisions of the Premises Act, we are clearly of the opinion that Section 5 of the Limitation Act would be applicable for applications filed under Section 13-A (b) of the Act, Mr. Tikku placed, reliance on a Division Bench decision of the Punjab and Haryana High Court in Thambu Devi Ram v. Addl. Director Consolidation of Holdings. Hissar, AIR 1968 Puni 282. In our view this decision renders no assistance to the arguments advanced by Mr. Tikku. In the abovementioned Punjab case the question was relating to the jurisdiction of the Additional Director to entertain and accept the application filed under Section 42 of the East Punjab Holdings (Consolidation and prevention of Fragmentation) Act. 1948 after the expiry of about ten years of the orders sought to be varied. was barred by Rule 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules 1949, or not. In the above context it was observed in f that case that (at Pp. 285-86): "It appears to us that whereas the general law prescribing period of limitation for an appeal against acquittal was covered by Limitation Act, the period for preferring such an appeal by special leave not having been mentioned in the first Schudle. to the Limitation Act Section 29 (2) (b) of that Act was invoked so as to make Section 3 of the Limitation Act applicable, but exclude all other provisions thereof including Section 5 from their operation on the application for special leave. Though limitation for an appeal against acquittal under Section 417 of the Cr. P.C. is prescribed by the Limitation Act there is no mention of the East Punjab Holdings (Consolidation and prevention of Fragmentation) Act (50 of 1948) in the Schedule to the Limitation Act. and no period of limitation for any proceedings under that Act is prescribed by the general law of limitation. The period of limitation prescribed by Rule 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949. is not a special period prescribed for any proceedings mentioned in the Schedule to the Limitation Act. but relates to a subject which does not at all find place in. the said Schedule. For the purpose of limitation for proceedings under the Consolidation Act the Limitation Act of 1963 cannot be called the general law to which Rule 18 is an exception. The Consolidation Act read with the Rules framed thereunder is a complete Code of the substantive as well as procedural law is on the subject dealt with therein. The provision as t0 limitation for filing an application under Section 42 of the Act is self-contained and is neither controlled nor supplemented by the Limitation Act. In this view of the matter, the ratio of the judgment of their Lordship of the Supreme Court in Kaushalya Rani's case. AIR 1964 SC 260 (supra) does not appear to help the appellants." The above case was thus decided on the ground that for purposes of limitation for proceedings under the consolidation Act, the Limitation Act, 1963, cannot be called the general law to which Rule 18 is an exception. It was further observed that the Consolidation Act read with the rules framed thereunder is a complete code of the substantive as well as procedural laws on the subject dealt with therein. The above case as such is clearly distinguishable from the controversy raised before us. As already held by us the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 is a special law and there is no express provision contained in it for excluding the provisions of Section 5 of the Limitation Act and as such Section 29 (2) of the Limitation Act will come into operation and Section 5 of the Limitation Act will be applicable in applications filed under Section 13-A (b) of the Act.